Opposition Brief — Kenya Ali Hyatt, Petitioner v. Michigan

No. 18-6777

In the Supreme Court of the United States

KENYA ALI HYATT, PETITIONER

V.

MICHIGAN

ON PETITION FOR A WRIT OF CERTIORARI TO THE

MICHIGAN SUPREME COURT

BRIEF IN OPPOSITION

David S. Leyton

Genesee County Prosecuting Attorney

Michael A. Tesner

Managing APA - Appellate Division

Counsel of Record

900 S. Saginaw Street

100 Courthouse

Flint, Michigan 48430

mtesner@co.genesee.mi.us

(810) 257-3852

Attorneys for Respondent

-i-

QUESTIONS PRESENTED

1. Whether Michigan’s procedural statute enacted in response to Miller v. Alabama

violates the Sixth Amendment or the Fourteenth Amendment because it does not

require a jury determination of any specific fact prior to the imposition of a life

without parole sentence for a juvenile convicted of first-degree murder?

2. Whether the Eighth Amendment requires the finding of narrowing criteria, such

as permanent incorrigibility or irreparable corruption, prior to allowing the

imposition of a life without parole sentence on a juvenile convicted of first-degree

murder?

-iiPARTIES TO THE PROCEEDING

There are no parties to the proceedings other than those listed in the caption.

The petitioner is Kenya Hyatt, an individual convicted of first-degree murder as a

juvenile. The respondent is the State of Michigan. This case was consolidated in the

Michigan Supreme Court with Skinner v. Michigan, 18-6782, and Petitions were filed

at the same time in this Court on both cases.

-iiiTABLE OF CONTENTS

Page

Questions Presented ............................................................................................ i

Parties to the Proceeding ................................................................................... ii

Index of Authorities .............................................................................................v

Opinions Below ....................................................................................................1

Jurisdiction ..........................................................................................................1

Constitutional and Statutory Provisions Involved .............................................1

Introduction .........................................................................................................3

Statement of the Case .........................................................................................5

Reasons for Denying the Petition......................................................................15

I.

II.

Michigan’s procedural statute in response to Miller v. Alabama does not

violate the Sixth Amendment or the Fourteenth Amendment .............15

A.

State courts are not split on the Sixth Amendment issue ..........15

B.

On the merits, the Michigan Supreme Court correctly decided

that no jury right exists in a sentencing after Miller under this

Court’s Sixth Amendment precedent ..........................................18

The Eighth Amendment does not require any particular factual findings

prior to imposition of a life without parole sentence on a juvenile

murderer, and Michigan’s statutory sentencing scheme is constitutional

.................................................................................................................22

A.

A legitimate diversity of state approaches does not require this

Court’s review, as confirmed by this Court’s decision to reject a

petition challenging the Florida juvenile homicide sentencing

scheme, in Beckman v. Florida ....................................................22

B.

The Michigan sentencing scheme does not violate the Eighth

Amendment ..................................................................................24

1.

Michigan’s sentencing scheme authorizes the court to

impose life without parole as a sentence and does not

require any finding as a prerequisite to this decision ......24

-iv2.

That some states impose additional limitations and

requirements, including specific factual findings, prior to

imposition of a life without parole sentence on juvenile

offenders does not undermine the validity of Michigan’s

system ................................................................................27

Conclusion ……………………………………………………………………………..30

C

-vINDEX OF AUTHORITIES

Page

Cases

Alleyne v. United States, 570 U.S. 99 (2013) ....................................................20

Apprendi v. New Jersey, 530 U.S. 466 (2000) .............................................19, 20

Beckman v. State of Florida, Case No. 18-6185 .........................................16, 22

Blakely v. Washington, 542 U.S. 296 (2004) .....................................................21

Commonwealth v. Batts, 163 A.3d. 410 (Pa. 2017) ...........................................17

Danforth v. Minnesota, 552 U.S. 264 (2008) .....................................................17

Ford v. Wainwright, 477 U.S. 399 (1986) .........................................................17

Graham v. Florida, 560 US 48 (2010) ...............................................................13

Louisiana v. Fletcher, 149 So.3d 934 (La. Ct. App. 2014) ................................16

Miller v. Alabama, 567 U.S. 460 (2012) .................................................... passim

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) .............................. 5, 14, 15, 18

People v. Hyatt, 915 N.W.2d 886 (Mich. 2018) ...................................................1

People v. Blackwell, 3 Cal. App. 5th 166, 207 Cal. Rptr. 3d 444 (2016) ..........16

People v. Hyatt, 891 N.W.2d 549 (Mich. Ct. App. 2016) .....................................1

People v. Perkins, 885 N.W.2d 900 (Mich. Ct. App. 2016) ..................................1

People v. Skinner, 877 N.W.2d 482 (2015) ..........................................................9

People v. Skinner, 917 N.W.2d 292 (Mich. 2018) ...................................... passim

-viRoper v. Simmons, 543 U.S. 551 (2005) ............................................................13

Utah v. Houston, 353 P.3d 55 (Utah 2015) .......................................................16

Statutes

§ 775.082(1)(b)1 Fla. Stat. .................................................................................23

§ 775.082(1), Fla. Stat........................................................................................22

§ 921.1401 Fla. Stat. ....................................................................................22, 23

Mich. Comp. Laws § 750.157 ...............................................................................7

Mich. Comp. Laws § 750.227b .............................................................................7

Mich. Comp. Laws § 750.316 ...............................................................................7

Mich. Comp. Laws § 750.529 ...............................................................................7

Mich. Comp. Laws § 769.25 ....................................................................... passim

Constitutional Provisions

U.S. Const. Amend. VI.........................................................................................1

U.S. Const. Amend. VIII ......................................................................................1

U.S. Const. Amend. XIV ......................................................................................2

-1-

OPINIONS BELOW

The opinion of the Michigan Supreme Court, Pet. App. 1a, is reported at People

v. Skinner, 917 N.W.2d 292 (Mich. 2018). The order of the Michigan Supreme Court

denying the motion for rehearing, Pet. App. 117a, is People v Hyatt, 915 N.W.2d 886

(Mich. 2018). The opinion of the original panel of the Michigan Court of Appeals, Pet.

App. 71a, is reported at People v. Perkins, 885 N.W.2d 900 (Mich. Ct. App. 2016)

(consolidated opinion with co-defendant, Floyd Perkins); and the opinion of the

Michigan Court of Appeals conflict panel below, Pet. App. 30a, is reported at People

v. Hyatt, 891 N.W.2d 549 (Mich. Ct. App. 2016).

JURISDICTION

The State of Michigan accepts Petitioner’s statement of jurisdiction and agrees

that this Court has jurisdiction over the petition.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the state and district wherein

the crime shall have been committed . . . . [U.S. Const. Amend. VI.]

The Eighth Amendment to the United States Constitution provides that:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. Amend. VIII.

-2The Fourteenth Amendment to the United States Constitution provides in

part: “No State shall . . . deprive any person of life, liberty, or property, without due

process of law . . . .” U.S. Const. Amend. XIV.

Section 769.25 of the Michigan Code of Criminal Procedure controls the

procedure in Michigan for sentencing a juvenile offender who has been convicted of

first-degree murder and states, in relevant part:

(2) The prosecuting attorney may file a motion under this

section to sentence a [juvenile] defendant [convicted of

first-degree murder] to imprisonment for life without the

possibility of parole . . . .

(3) . . . The motion shall specify the grounds on which the

prosecuting attorney is requesting the court to impose a

sentence of imprisonment for life without the possibility of

parole.

(4) If the prosecuting attorney does not file a motion under

subsection (3) within the time periods provided for in that

subsection, the court shall sentence the defendant to a term

of years as provided in subsection (9).

(5) If the prosecuting attorney files a motion under

subsection (2) requesting that the individual be sentenced

to imprisonment for life without parole eligibility, the

individual shall file a response to the prosecution's motion

within 14 days after receiving notice of the motion.

(6) If the prosecuting attorney files a motion under

subsection (2), the court shall conduct a hearing on the

motion as part of the sentencing process. At the hearing,

the trial court shall consider the factors listed in Miller v

Alabama, 5[67] US [460]; 183 L Ed 2d 407; 132 S Ct 2455

(2012), and may consider any other criteria relevant to its

decision, including the individual’s record while

incarcerated.

-3(7) At the hearing under subsection (6), the court shall

specify on the record the aggravating and mitigating

circumstances considered by the court and the court’s

reasons supporting the sentence imposed. The court may

consider evidence presented at trial together with any

evidence presented at the sentencing hearing.

***

(9) If the court decides not to sentence the individual to

imprisonment for life without parole eligibility, the court

shall sentence the individual to a term of imprisonment for

which the maximum term shall be not less than 60 years

and the minimum term shall be not less than 25 years or

more than 40 years. [Mich. Comp. Laws § 769.25.]

INTRODUCTION

Kenya Hyatt, the Petitioner herein, and Tia Skinner, the Petitioner in Skinner

v. Michigan, 18-6782, have each filed a Petition to this Court seeking a Writ of

Certiorari to review the Michigan Supreme Court’s ruling in their consolidated case,

People v. Skinner, 917 N.W.2d 292 (Mich. 2018). As each petitioner has made the

same legal arguments, this Brief in Opposition is being filed contemporaneously with

the one in Skinner, and the Respondent refers to the “Petitioners” throughout this

Brief.

In Skinner, the Michigan Supreme Court held that Mich. Comp. Laws 769.25

does not violate either the Sixth Amendment or the Eighth Amendment because a

sentence of life without parole is authorized by the jury’s verdict alone and any

additional factfinding does not expose the defendant to an enhanced sentence.

Further, the Skinner court found that there is no requirement that a sentencing court

make a finding of fact regarding a child’s incorrigibility. Rather, the sentencing court

-4must follow a process to consider an offender’s youth and attendant characteristics

before imposing a particular penalty.

The Petitioners contend that these rulings were incorrect, and that this Court

should resolve whether the Sixth Amendment requires that a jury make a factual

finding before a juvenile convicted of murder may receive a life without parole

sentence. There is no split of authority among the states on this issue, however, and

no indication that the states have not applied this Court’s Sixth Amendment

precedent properly in the context of Miller and the sentencing of these juveniles.

The Petitioners also urge this Court to review the decision of the Michigan

Supreme Court because they believe that state supreme courts are divided on the

issue of whether the Eighth Amendment requires a finding of some narrowing

criteria, such as permanent incorrigibility or irreparable corruption, prior to

imposition of a life without parole sentence. While there is some disagreement among

states on this issue, it is not the type of split that demands resolution by this Court,

but rather reflects the implementation of this Court’s holding in Miller in statespecific ways.

Because the decision in Skinner complies with Miller and does not violate the

Sixth Amendment or the Eighth Amendment, and further because there is no split of

the nature requiring resolution by this Court, the Respondent requests that this

Court deny the Petition.

-5STATEMENT OF THE CASE

A. People v Kenya Hyatt

Kenya Hyatt was sentenced to life without parole for his conviction for firstdegree felony murder in 2014 for a murder he committed in August of 2010—three

months after his 17th birthday—under Michigan’s statute passed to implement this

Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012). Under Mich. Comp. Laws

§ 769.25 a juvenile convicted of first-degree murder is subject to a maximum sentence

of life without parole. While the statute requires a hearing at which a defendant has

the opportunity to present evidence of mitigating factors, including the

characteristics of youth delineated by this Court in Miller, and requires the

sentencing court to place on the record “the aggravating and mitigating

circumstances considered by the court and the court’s reasons supporting the

sentence imposed,” the statute does not require the finding of additional facts beyond

the jury verdict to impose a sentence of life without parole. Therefore, the statute

does not violate the Sixth Amendment as the sentence of life without parole is

authorized by the jury verdict alone.

In People v. Skinner,1 the Michigan Supreme Court held that Miller and

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), do not require a sentencing court

1 The Michigan Supreme Court consolidated Petitioner Kenya Hyatt’s case with Tia Skinner’s case,

Skinner v Michigan, 18-6782, to address the Sixth Amendment and Eighth Amendment challenges to

Michigan’s implementation of Mich. Comp. Laws 769.25, passed by the legislature in response to

Miller v. Alabama. Both Tia Skinner and Kenya Hyatt have filed petitions with this court making

identical legal arguments and, therefore, the State of Michigan is responding to each case with

identical arguments.

-6to make findings of fact that a juvenile murderer is “irreparably corrupt” or

“permanently incorrigible” prior to imposing a sentence of life without parole.

Contrary to assertions by the Petitioners, the Michigan Supreme Court did not

hold that there is a presumption of life without parole. Mich. Comp. Laws § 769.25

requires a hearing at which the court must consider aggravating and mitigating

circumstances and place reasons on the record prior to imposing either a term of

years sentence or life without parole. Indeed, the Skinner court recognized a

sentence of life without parole would be disproportionate and therefore

unreasonable and an abuse of discretion where the Miller factors—and any other

evidence presented—mitigate against such a sentence and, thus, demonstrate

that a particular defendant in a particular case is not irreparably corrupt.

Skinner, 917 N.W.2d at 310-311.

B. Procedural History of the Case

1. The incident occurred substantially as the Petitioner alleges, however Kenya

Hyatt was more directly involved in the killing than he reveals. Hyatt agreed, along

with two of his cousins—co-defendants Aaron Williams and Floyd Perkins—to

assault a security guard at Williams’s apartment complex to rob him of his service

pistol so that Perkins could obtain a firearm to protect himself and his family. Pet.

App. 78a, 80a, 86a. Williams borrowed a pistol from someone and provided it to Hyatt

to use in the robbery. Id. at 78a, 86a. Williams acted drunk to lure the victim out of

his security car. Id. at 78a. When the victim approached Williams to provide

assistance, Perkins grabbed the victim and held him while Hyatt drew the firearm

-7provided by Williams and pointed it at the victim. Id. According to both Hyatt and

Perkins, “the victim reached for Hyatt’s gun and the gun discharged. Id. After that

first shot, Perkins grabbed the victim’s side-arm and ran away. Id. Perkins heard

additional shots as he was fleeing. Id. Hyatt maintained that the first shot was

accidental and that he subsequently ‘blacked out’ and could not remember what

happened afterwards.” Id. “An autopsy revealed that the victim had been shot three

times,” once in the chest and twice in the back of the head. Id. at 78a, 86a.

Hyatt was convicted of first-degree felony murder, Mich. Comp. Laws §

750.316(a)(b), conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157(a),

armed robbery, Mich. Comp. Laws § 750.529, and possession of a firearm during the

commission of a felony, Mich. Comp. Laws § 750.227b(1). Pet. App. 77a.

2. Consistent with Mich. Comp. Laws § 769.25(3), the prosecuting attorney filed

a motion seeking a sentence of life without parole. A hearing was subsequently

conducted for the court to “consider the factors listed in Miller v Allabama, . . . and .

. . any other criteria relevant to its decision, including the individual’s record while

incarcerated,” as required by Mich. Comp. Laws § 769.25(6). At this Miller hearing,

Hyatt presented evidence of mitigation, including his background and family life as

referenced by Hyatt in the Petition. Pet. at 5. Among other things, Psychologist Karen

Noelle testified that Hyatt “was a ‘seriously disturbed young man’ with ‘serious

maladjustment . . . .’” Pet. App., 95a.

Noelle believed Hyatt had the intellectual capacity to be rehabilitated.

She was “not sure” whether Hyatt was capable of remorse before the

-8incident occurred because he clearly failed to appreciate the

consequences of his prior actions. Hyatt was immature and

irresponsible. Noelle testified: “I don’t know that he has no sense of

remorse and no conscience at all. . . . I do feel that he is not a sensitive,

compassionate young man. I do feel that he’s pretty disconnected from

societal morals and mores. I think that’s concerning, yes I do.” Noelle

testified that she could not predict whether Hyatt was going to change.

It would “require extreme effort and dedication on his part.” But she

could not say that he was “irredeemable.” “[I]f I were to predict in five

years, it would not be possible.” [Pet. App., 95a.]

Petitioner fails to mention that at the Miller hearing, the detective, Chief Terrence

Green, testified that, “unlike the other defendants, Hyatt showed “no remorse, no

concern” for what happened. Green acknowledged that the robbery was Perkins’ idea

and that the other defendants were older than Hyatt. Hyatt’s school records revealed

assaultive behavior and a threat to “put a cap” in a teacher, resulting in his

suspension. A counselor had worried that Hyatt appeared to have no remorse or

conscience. Id.

The sentencing court considered the Miller factors and concluded, “’I don’t

think any factor that I’ve considered has anything to do with his age.’ Hyatt’s criminal

acts were not the result of ‘impetuosity or recklessness.’ After extensively reviewing

the evidence before it, the sentencing court concluded that ‘[i]n considering all of that

and the nature of the crime itself and the defendant’s level of participation as the

actual shooter in this case, the principle of proportionality requires this Court to

sentence him to life in the State prison without parole.’” Pet. App., 96a.

3. A three judge panel of the Michigan Court of Appeals affirmed Hyatt’s

convictions, but was compelled to remand the case to the trial court based on a two-

-9judge majority opinion in People v. Skinner, 877 N.W.2d 482 (2015), which held that

juries, not judges, were to determine the sentence of a juvenile murderer under Mich.

Comp. Laws 769.25. Pet. App. 71a. The Hyatt panel, however, explicitly disagreed

and declared a conflict with Skinner, stating that “[w]ere it not for Skinner, we would

affirm the sentencing court’s decision to sentence Hyatt to life imprisonment without

the possibility of parole,” because judges, not juries, were to determine such

sentences. Pet. App., 88a, 96a.

4. Subsequently, the Michigan Court of Appeals convened a conflict panel to

resolve the disparity between Perkins and Skinner. Pet. App., 33a. The conflict panel

unanimously held that judges, not juries, are to determine the sentence of a juvenile

murderer under Mich. Comp. Laws 769.25, and such a holding is consistent with the

Sixth and Eighth Amendments of the U.S. Constitution. Id. The majority of the

conflict panel also reversed the trial court’s sentence of life without parole and held

that the Eighth Amendment requires the trial court to consider not only the Miller

factors, but also to “decide whether [a] defendant is the truly rare juvenile mentioned

in Miller who is incorrigible and incapable for reform.” Pet. App, 60a.

5. The Michigan Supreme Court consolidated appeals from both Skinner and

Hyatt and issued one opinion on both cases. Pet. App. 1a. The court held that Mich.

Comp. Laws 769.25 does not violate either the Sixth Amendment or the Eighth

Amendment. Life without parole is authorized by the jury’s verdict alone and any

additional factfinding does not expose the defendant to an enhanced sentence. Pet.

App. 12a. Moreover, nothing in Miller or Montgomery “require trial courts to make a

-10finding of fact regarding a child’s incorrigibility.” Pet. App. 14a. Rather, the Eighth

Amendment only requires the sentencing court to “follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a

particular penalty.” Pet. App. 13a. Finally, the Michigan Supreme Court held that it

was not required “to deviate from its traditional abuse-of-discretion standard in

reviewing a trial court’s decision to impose life without parole.” Pet. App. 16a. The

court recognized, however, that after consideration of the Miller factors, imposition

of a sentence of life without parole on a juvenile who was not irreparably corrupt

would constitute an abuse of discretion. Pet. App. 17a-18a, 26a.

C. Michigan’s response to Miller v. Alabama

In response to this Court’s decision in Miller v. Alabama, 567 U.S. 460 (2016),

which made mandatory life without parole sentences unconstitutional for juveniles,

the Michigan legislature enacted Mich. Comp. Laws § 769.25 to provide a sentencing

process for prosecutors, defendants, and trial courts. Pet. App. 75a. After a juvenile

is convicted of first-degree murder in Michigan, a range of penalties is available to

the sentencing court, all authorized by the jury’s verdict alone. What sentence the

court ultimately imposes depends on the Miller-compliant procedure set forth in

Mich. Comp. Laws § 769.25. In People v. Skinner, 917 N.W.2d 292 (Mich. 2018), the

Michigan Supreme Court found that this statute did not violate the Sixth

Amendment because neither the statute nor the Eighth Amendment requires a judge

to find any particular fact before imposing life without parole, which is authorized by

the jury’s verdict. In seeking this Court’s review of the decision in Skinner, the

-11Petitioners incorrectly construe a number of aspects of Mich. Comp. Laws § 769.25,

all of which are significant in a Sixth Amendment analysis.

Mich. Comp. Laws § 769.25 provides that the prosecutor may elect to seek a

life without parole sentence, and if the prosecutor so elects, a motion must be filed

specifying the grounds on which the prosecuting attorney is requesting the court

impose the maximum sentence. The trial court then conducts a hearing on the motion

as part of the sentencing process and considers the factors listed in Miller. The

sentencing court may also consider any other criteria relevant to its decision,

including the defendant’s record while incarcerated. The court must specify all

aggravating and mitigating circumstances on the record and its reasons for the

sentence imposed. The “aggravating circumstances” referenced in the statute do not

have the effect of increasing the defendant’s sentence beyond the range allowable by

the jury’s verdict, however. The sentencing court does not have to find that an

“aggravating circumstance” exists before it can sentence a juvenile to life without

parole.

If the prosecutor does not seek life without parole, the statute provides that

the court shall sentence the defendant to a term of years sentence. Once the

prosecutor files a timely motion seeking the maximum allowable penalty, the

sentencing court must conduct a hearing and may choose either a term of years, or

life without parole. Notably, there is nothing in Mich. Comp. Laws § 769.25 that

requires the finding of a particular fact before a court can impose life without parole.

-12Any juvenile convicted of first-degree murder in Michigan is aware of the

potential for a life sentence without the possibility of parole. Juveniles will not

necessarily receive this most severe sentence, but no defendant is certain of the

sentence he or she will receive at the time of trial. A juvenile in Michigan convicted

of first-degree murder is not “automatically eligible for a term of years sentence, or

“statutorily entitled to be sentenced to a term of years” as the Petitioners suggest.

Pet. 8. Rather, once convicted, the juvenile is still subject to any sentence within the

range of available penalties, including life without parole. The juvenile offender

knows he or she is risking life imprisonment without an opportunity for parole when

he or she commits first-degree murder.

The Petitioners also erroneously refer to “the usual statutory term of years

sentence,” where there is no such sentence provided in the statute. Pet. at 8. Further,

the Petitioners state “upon the jury’s determination of guilt, a juvenile defendant can

only receive a term of years.” Id. This is not the way the statute works. Recognizing

that life without parole sentences will not and should not be sought in every firstdegree murder case committed by a juvenile, Michigan’s legislature provided a

process to promote judicial economy and efficient allocation of resources, so that a

Miller hearing would not be required after all first-degree juvenile murder

convictions, but only those where the prosecutor files a motion seeking the maximum

available penalty. The existence of this process, which the Skinner decision calls a

“legislative procedural precondition,” does not create a default to a term of years.

Skinner, 917 N.W.2d at 304.

-13D.

The Montgomery decision

In Miller, this Court held that:

the Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for

juvenile offenders. . . . By making youth (and all that

accompanies it) irrelevant to imposition of that harshest

prison sentence, such a scheme poses too great a risk of

disproportionate punishment. . . . But given all we have

said . . . we think appropriate occasions for sentencing

juveniles to this harshest possible penalty will be

uncommon. That is especially so because of the great

difficulty we noted in Roper and Graham of distinguishing

at this early age between “the juvenile offender whose

crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable

corruption.”. . . Although we do not foreclose a sentencer’s

ability to make that judgment in homicide cases, we require

it to take into account how children are different, and how

those differences counsel against irrevocably sentencing

them to a lifetime in prison. [Miller, 567 U.S. at 479-480

(emphasis added) (footnote and internal citations

omitted).]

Miller’s holding was premised on the prior rulings of Roper v. Simmons, 543 U.S. 551

(2005) and Graham v. Florida, 560 U.S. 48 (2010). Nowhere within the holdings of

Miller, Roper, or Graham did this Court require sentencers to determine particular

facts. Rather, as simply put by the Court, “we require [the sentencer] to take into

account how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at 480. In obiter

dicta, the Court anticipated that life-imprisonment-without-parole sentences would

be “uncommon.” Id. at 479. As recognized in Miller itself, this suggestion was not

essential to the holding. Id. In Montgomery, the Court reiterated that in Miller, “a

juvenile convicted of a homicide offense could not be sentenced to life in prison

-14without parole absent consideration of the juvenile’s special circumstances in light of

the principles and purposes of juvenile sentencing.” 136 S. Ct. at 725.

The Miller decision focused on the requirement for an individualized sentence,

insisting that a sentencer have the ability to consider the “mitigating qualities of

youth.” Miller, 567 U.S. at 476. “By removing youth from the balance—by subjecting

a juvenile to the same life-without-parole sentence applicable to an adult—these laws

prohibit a sentencing authority from assessing whether the law’s harshest term of

imprisonment proportionately punishes a juvenile offender.” Id. at 474 (emphasis

added). In Montgomery, the Court recognized “that a sentencer might encounter the

rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is

impossible and life without parole is justified.” 136 S. Ct. at 733. Nevertheless,

neither Montgomery nor Miller defined who the “rare” juvenile is—or could be—nor

required a specific finding that such a defendant is depraved or incorrigible.

To conform to Miller’s individualized-sentencing mandate, a sentencing court

must consider all relevant evidence bearing on the “distinctive attributes of youth”

discussed in Miller and how those attributes “diminish the penological justifications

for imposing the harshest sentences on juvenile offenders.” Miller, 567 U.S. at 472.

In order to accomplish an individualized sentence, the Court listed “considerations,”

that must be taken into account, Miller, 567 U.S. at 476-478, but this Court imposed

no particular fact-finding requirement in either Miller or Montgomery.

-15REASONS FOR DENYING THE PETITION

I.

Michigan’s procedural statute in response to Miller v. Alabama

does not violate the Sixth Amendment or the Fourteenth Amendment.

In seeking review of the Michigan Supreme Court decision, the Petitioners

claim that a split exists on whether a criminal defendant is entitled to a jury decision

to receive a life sentence without an opportunity for parole or a sentence to a term of

years. All of the courts that have reviewed this issue on constitutional grounds, however, have found that no such right to a jury decision exists under the Sixth Amendment. This Court’s review is not necessary. Cf. Rule 10 of Supreme Court Rules.

There is good reason that the lower courts have all reached the same conclusion

as the Michigan Supreme Court. This decision may be properly given to a sentencing

court. In fact, this Court suggested as much in its decision in Montgomery, as this

Court twice made reference to “sentencing courts.” 136 S Ct at 726, 734.

A. State courts are not split on the Sixth Amendment issue.

Although the Petitioners urge the Court that the states need clarification

between what constitutes constitutionally barred judicial fact-finding and what is

constitutionally permissible discretionary sentencing, the Petitioners have not

pointed to any state decision where the highest court has found that the Sixth

Amendment requires a jury to determine whether a juvenile can be sentenced to life

without parole after Miller.

The Petitioners concede that all states that have

considered such a challenge on Sixth Amendment grounds have upheld the

sentencing statutes in question.

-16The Petitioners suggest that Michigan is “at the center of the national debate”

on the Sixth Amendment issue, but based on the outcomes of the cases where such

challenges have been raised, there really is no question. At this time, lower courts

are not split on the issue of whether there is a right to a jury determination of a life

without parole sentence.2 The other courts that have expressly addressed this issue

about whether a jury is required have reached the same conclusion, apparently

without exception.

See, e.g., Commonwealth v. Batts, 163 A.3d. 410 (Pa. 2017)

(released June 26, 2017), slip. op., p 78 (“We further disagree with Batts that a jury

must make the finding regarding a juvenile’s eligibility to be sentenced to life without

parole”); People v. Blackwell, 3 Cal. App. 5th 166, 207 Cal. Rptr. 3d 444, 458–460

(2016) (rejecting the argument that a jury was necessary to make a factual

determination of irreparable corruption before imposing LWOP); Utah v. Houston,

353 P.3d 55, 68 (Utah 2015) (“the Apprendi rule d[oes] not apply, and there is no

violation”); Louisiana v. Fletcher, 149 So.3d 934, 943 (La. Ct. App. 2014) (finding

Apprendi inapplicable and stating that “Miller does not require proof of an additional

element of ‘irretrievable depravity’ or ‘irrevocable corruption.’ ”). This demonstrates

that the guidance provided by this Court in its Sixth Amendment jurisprudence has

been clear, and properly applied by the state courts.

The Petitioners present only one contrast to these state court decisions: a

Missouri statute, where the state legislature affords a juvenile convicted of first

2 This same point was noted by the Respondent in a recent Brief in Opposition to this Court in Jason

Beckman v. State of Florida, Case No. 18-6185. This Court denied the Petition on February 19, 2019.

-17degree murder a right to a jury to consider the Miller factors. This does not create a

conflict among states because states are generally free to provide greater protections

to their citizens. See Danforth v. Minnesota, 552 U.S. 264, 275 n.12 (2008). The fact

that one state has given juveniles convicted of homicide a statutory right to a jury

determination of their sentence does not bear on other states’ interpretations of the

Sixth Amendment of the U.S. Constitution and its application to state statutes.

A decision from this Court whether Michigan’s Supreme Court correctly

decided the Sixth Amendment question as it relates to the state-specific language of

its statute does not ensure uniform application throughout the nation, because each

state has approached Miller-compliant sentencing of juveniles differently. In some

states a life without parole sentence was discretionary prior to Miller. Other states

banned a life without parole sentence entirely, or had already done so when Miller

was decided. Some states have enacted statutes like Michigan’s statute, providing a

process to impose a sentence within a range of a minimum term of years to a

maximum of life without parole.

At the time this Court decided Miller, it likely expected that states would

implement the requirements of individualized sentencing of juveniles in homicide

cases in different ways. This Court has historically placed the responsibility of

implementing its decisions on the states: “we leave to the State the task of developing

appropriate ways to enforce the constitutional restriction upon its execution of

sentences.” Ford v. Wainwright, 477 U.S. 399 (1986).

-18In Montgomery, this Court reiterated this principle relating to Miller: “[w]hen

a new substantive rule of conditional law is established, this Court is careful to limit

the scope of any attendant procedural requirement to avoid intruding more than

necessary upon the States’ sovereign administration of their criminal justice

systems.” Montgomery, 136 S. Ct. at 735. While this Court has warned that the

absence of a “formal factfinding requirement does not leave the states free to sentence

a child whose crime reflects transient immaturity,” id., to a sentence of life without

parole, it is logical to conclude that the manner in which sentencings proceed after

Miller may differ from one state to another, so long as the offender’s youth and

attendant characteristics are considered. Michigan’s statute fully complies in this

regard.

B. On the merits, the Michigan Supreme Court correctly decided that no

jury right exists in a sentencing after Miller under this Court’s Sixth

Amendment precedent.

The sentencing factors considered in mitigation of the maximum allowable

sentence, such as those in Mich. Comp. Laws § 769.25, are not required to be found

by a jury. The focus of this Court’s decision in Miller is on the juvenile offender’s

opportunity to present facts in mitigation of a sentence of life without the possibility

of parole.3 The Skinner decision correctly observes this aspect, and distinguishes

between impermissible fact-finding that increases the potential penalty beyond what

3 As this Court stated: “[a]lthough we do not foreclose a sentencer’s ability to make that judgment in

homicide cases, we require it to take into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.” Miller, at 479-480.

-19the jury’s verdict supports, and the proper judicial consideration of mitigating

circumstances in choosing an appropriate, individualized sentence for each juvenile.

This distinction is critical because the process that is detailed in Mich. Comp. Laws

§769.25 is a mitigating exercise, and therefore does not violate the Sixth Amendment.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), this Court discussed this

distinction, explaining:

If facts found by a jury support a guilty verdict of murder,

the judge is authorized by that jury verdict to sentence the

defendant to the maximum sentence provided by the

murder statute. If the defendant can escape the statutory

maximum by showing, for example, that he is a war

veteran, then a judge that finds the fact of veteran status

is neither exposing the defendant to the deprivation of

liberty greater than that authorized by the verdict

according the statute, nor is the judge imposing upon the

defendant a greater stigma than that accompanying the

jury verdict alone. Core concerns animating the jury and

burden-of-proof requirements are thus absent from such a

scheme. [Apprendi, at 491, n.16.]

Therefore, as in the example in Apprendi, the consideration of mitigating

circumstances in Mich. Comp. Laws § 769.25 does not require a jury determination

nor proof beyond a reasonable doubt. The Sixth Amendment is not implicated.

The sentencing hearings that Miller requires are intended to allow for

consideration of individualized circumstances of the juvenile and his or her case, not

to create an additional element for a jury to find before a life without parole penalty

may be imposed. Sentencing courts have always had the ability to choose from a

range of punishments already prescribed by statute without necessitating a jury

finding.

-20A court’s finding of facts considered in the proper exercise of sentencing

discretion is not in violation of the Sixth Amendment. In Apprendi, this Court stated:

“[w]e should be clear that nothing in this history suggests that it is impermissible for

judges to exercise discretion—taking into consideration various factors relating both

to offense and offender—in imposing a judgment within the range prescribed by

statute.” Apprendi, 530 U.S. at 481. In Alleyne v. United States, 570 U.S. 99 (2013),

this Court again affirmed judicial sentencing discretion:

In holding that the fact that increased mandatory

minimum sentences must be submitted to the jury, we take

care to note what our holding does not entail. Our ruling

today does not mean that any fact that influences

judicial discretion must be found by a jury. We have

long recognized that broad sentencing discretion,

informed by judicial factfinding, does not violate the

Sixth Amendment. [Alleyne, 530 U.S. at 2163 (emphasis

added).]

The statutes at issue in Apprendi and Alleyne required the finding of specific

facts by a jury before the punishments at issue could be imposed. Mich. Comp. Laws

§ 769.25, however, does not provide specific facts that must be found prior to

imposition of a sentence. Instead, the statute requires only that the court evaluate

the considerations enumerated in Miller. A judicial sentencing determination under

Mich. Comp. Laws § 769.25 involves the evaluation of an array of circumstances and

considerations, but no “fact” must be found.

Under Mich. Comp. Laws § 769.25, the defendant is not entitled to a term of

years absent some additional finding. In the context of indeterminate sentencing,

-21this Court discussed the significance of this aspect in Blakely v. Washington, 542 U.S.

296 (2004):

[T]he Sixth Amendment by its terms is not a limitation on

judicial power, but a reservation of jury power. It limits

judicial power only to the extent that the claimed judicial

power infringes on the province of the jury. Indeterminate

sentencing does not do so. It increases judicial discretion,

to be sure, but not at the expense of the jury's traditional

function of finding the facts essential to lawful imposition

of the penalty. Of course indeterminate schemes involve

judicial factfinding, in that a judge (like a parole board)

may implicitly rule on those facts he deems important to

the exercise of his sentencing discretion. But the facts do

not pertain to whether the defendant has a legal right to a

lesser sentence—and that makes all the difference insofar

as judicial impingement upon the traditional role of the

jury is concerned. In a system that says the judge may

punish burglary with 10 to 40 years, every burglar knows

he is risking 40 years in jail. In a system that punishes

burglary with a 10–year sentence, with another 30 added

for use of a gun, the burglar who enters a home unarmed

is entitled to no more than a 10–year sentence—and by

reason of the Sixth Amendment the facts bearing upon that

entitlement must be found by a jury. [Blakely, at 308-309.]

Michigan’s statute does not violate the Sixth Amendment, nor does it operate

in contradiction of this Court’s decisions applying the Sixth Amendment to various

types of sentencing schemes.

Therefore, the Michigan Supreme Court correctly

determined that no jury finding is required by Mich. Comp. Laws § 769.25.

-22II.

The Eighth Amendment does not require any particular factual

findings prior to imposition of a life without parole sentence on a

juvenile murderer, and Michigan’s statutory sentencing scheme is

constitutional.

In attempting to identify a split among the state courts on the second question

presented, the Petitioners fail to recognize that the state courts may take different

approaches to the sentencing schemes they create without establishing a conflict of

interpretation of what is constitutionally required. The variation among the states

confirms that the states are independent, sovereign actors who may enact differing

processes under their respective laws. These differences are manifestations of

federalism and do not require this Court’s review. On the narrower point about

whether Michigan’s sentencing process conforms to constitutional requirements, it

does. Michigan has faithfully applied the requirements of this Court’s decisions.

A. A legitimate diversity of state approaches does not require this

Court’s review, as confirmed by this Court’s decision to reject a

petition challenging the Florida juvenile homicide sentencing

scheme, in Beckman v. Florida.

In Beckman v. Florida, No. 18-6185, the Court recently denied a petition

challenging the juvenile homicide sentencing scheme enacted by Florida to conform

to Miller. In enacting § 921.1401 Fla. Stat., the Florida Legislature effectively created

a hearing on whether to mitigate a juvenile’s sentence, rather than to aggravate it.

Before § 921.1401 Fla. Stat. was passed, a juvenile convicted of first-degree murder

could be sentenced only to life without parole. § 775.082(1), Fla. Stat. (2013). Under

the amended law, the trial court conducts an individualized hearing to determine the

-23“appropriate” sentence after considering mitigating factors and other case-specific

evidence. See § 921.1401, Fla. Stat.

Florida’s statute does not contain “a clear factfinding directive,” or indeed any

factfinding directive at all. Instead, § 921.1401 Fla. Stat. allows the judge to “conduct

a separate sentencing hearing to determine” if life without parole “is an appropriate

sentence,” during which the judge must “consider factors relevant to the offense and

the defendant’s youth and attendant circumstances.” § 921.1401(2) Fla. Stat. The

judge need not make any particular findings on those factors to conclude that life

without parole is an appropriate sentence. Nor must the judge make any findings of

fact in order to impose a sentence below the statutory maximum of life without parole.

Under § 775.082(1)(b)1 Fla. Stat. and § 921.1401(1) Fla. Stat., a judge may sentence

a juvenile to life without parole without any additional findings of fact.

Put simply, the role of the individualized sentencing hearing in Florida’s

scheme is not to obtain the additional findings of fact needed to increase a sentence

beyond the statutory maximum, but instead to satisfy Miller’s command that

sentencers must “have the ability to consider the ‘mitigating qualities of youth’” when

exercising their discretion to sentence a juvenile defendant within a statutory range.

Miller, 567 U.S. at 476.

As the Michigan sentencing scheme is strikingly similar to that employed by

Florida, the Court should likewise deny the Petition and allow Michigan to resentence

-24its juvenile offenders consistent with Miller, Montgomery, and the Eighth

Amendment.

B. The Michigan sentencing scheme does not violate the Eighth

Amendment.

Michigan’s law is consonant with this Court’s decisions in Miller and

Montgomery. It allows a sentencing court to impose a life-without-parole sentence but

does not create a presumption of a sentence of a term of years, and creates no

necessary factual predicates to impose a life without parole sentence. The

disagreement of some courts does not mean this Court’s review is warranted.

1. Michigan’s sentencing scheme authorizes the court to impose

life without parole as a sentence and does not require any

finding as a prerequisite to this decision.

Under the Michigan statute, enacted to conform to the holding in Miller, once

a juvenile is convicted of a listed homicide offense, the statute allows the prosecuting

attorney to “file a motion under this section to sentence” the juvenile murderer “to

imprisonment for life without the possibility of parole[.]” Mich. Comp. Laws §

769.25(2). As previously discussed, Mich. Comp. Laws § 769.25 explains the

sentencing process:

(6) If the prosecuting attorney files a motion under subsection (2),

the court shall conduct a hearing on the motion as part of the

sentencing process. At the hearing, the trial court shall consider the

factors listed in Miller v. Alabama, 5[67] U.S. [460]; 183 L Ed 2d

407; 132 S Ct 2455 (2012), and may consider any other criteria

relevant to its decision, including the individual’s record while

incarcerated.

-25(7) At the hearing under subsection (6), the court shall specify on

the record the aggravating and mitigating circumstances considered

by the court and the court’s reasons supporting the sentence

imposed. The court may consider evidence presented at trial

together with any evidence presented at the sentencing hearing.

***

(9) If the court decides not to sentence the individual to

imprisonment for life without parole eligibility, the court shall

sentence the individual to a term of imprisonment for which the

maximum term shall be not less than 60 years and the minimum term

shall be not less than 25 years or more than 40 years.

In Skinner, the Michigan Supreme Court held that neither the statute nor the

Eighth Amendment require the sentencing court to find that a juvenile murderer is

the truly rare juvenile mentioned in Miller who is incorrigible and incapable of

reform. 917 N.W.2d at 295. The Eighth Amendment, under either Miller or

Montgomery, does not require additional fact-finding before a life-without-parole

sentence can be imposed. Although there was language in those cases that could be

read to suggest that the sentencer must find that the juvenile offender’s crime reflects

irreparable corruption before a life-without-parole sentence could be imposed, Miller

simply held that mandatory life-without-parole sentences for juveniles violate the

Eighth Amendment and that before such a sentence could be imposed on a juvenile,

the sentencer must consider the mitigating qualities of youth. Skinner, 917 N.W.2d

at 307-308.

Similarly, Montgomery expressly stated that Miller did not require trial courts

to make a finding of fact regarding a child’s incorrigibility. Skinner, 917 N.W.2d at

309. Montgomery held that while the substantive rule is that juveniles who are not

-26irreparably corrupt cannot be sentenced to life without parole, the states were free to

develop their own procedures to enforce this new substantive rule. Id. In this sense,

the “irreparable corruption” standard was analogous to the proportionality standard

that applied to all criminal sentences: just as courts are not allowed to impose

disproportionate sentences, courts are not allowed to sentence juveniles who are not

irreparably corrupt to life without parole. Id. at 310-311. Just as whether a sentence

is proportionate is not a factual finding, whether a juvenile is “irreparably corrupt” is

not a factual finding. Id. at 310. “[Mich. Comp. Laws Section] 769.25 requires trial

courts to consider the Miller factors before imposing life without parole in order to

ensure that only those juveniles who are irreparably corrupt are sentenced to life

without parole. Id. at 311, n. 18. The statutory scheme encompassed in Mich. Comp.

Laws § 769.25 and Mich. Comp. Laws § 769.25a do not violate the Eighth

Amendment.

In Miller, the Court emphasized that “a judge or jury must have the

opportunity to consider mitigating circumstances before imposing the harshest

possible penalty for juveniles.” 567 U.S. at 489. There was no requirement that any

particular factual findings be made by the sentencing court, only that a juvenile

defendant have the opportunity to present mitigating factors that must be considered

by the court prior to imposing a life without parole sentence.

The number of juvenile murderers not yet resentenced in Michigan as

compared to other states is irrelevant to the question whether factual findings of

irreparable corruption or permanent incorrigibility are required under Miller and

-27Montgomery and the Eighth Amendment. The Petitioners assert that Michigan has

taken the “most extreme interpretation,” Pet. at 10, but Skinner simply held that

before sentencing a juvenile murderer to life without parole a sentencing court must

consider the mitigating qualities of youth and make findings as to those Miller factors

on the record. This is consistent with the requirements of Miller and Montgomery.

The mere fact that some states require more specific findings of fact does not

invalidate the Skinner court’s interpretation.

2. That some states impose additional limitations and

requirements, including specific factual findings, prior to

imposition of a life without parole sentence on juvenile offenders

does not undermine the validity of Michigan’s system.

The Respondent does not contest that there is a difference in approach among

various states regarding whether specific factual findings of irreparable corruption

or permanent incorrigibility are required prior to imposition of a life without parole

sentence. Nonetheless, where the Michigan Supreme Court’s holding in Skinner is

consistent with the holdings of Miller and Montgomery, these state-specific

differences do not present sufficient justification to grant this Petition and further

delay resolution of the many pending Michigan cases referred to by the Petitioners.

Pet. at 13.

Additionally, the Petitioners assert that “in Michigan, a child convicted of

felony murder or premeditated murder faces no constitutional limitations . . . on the

arbitrary imposition of a life without parole punishment.” Pet. at 9. This is not true.

Mich. Comp. Laws § 769.25 requires a particular procedure with findings as to

-28aggravating and mitigating factors placed on the record as well as the reasons

underlying the court’s sentencing decision. The Michigan Supreme Court held this

statutory scheme to be constitutional because the defendant has an opportunity to

present evidence mitigating against a life without parole sentence, as required by

Miller. Through this procedure, requiring the court to consider these factors before

imposing life without parole, Michigan’s statute “ensure[s] that only those juveniles

who are irreparably corrupt are sentenced to life without parole.” Skinner, 917

N.W.2d at 311, n. 18.

Contrary to Petitioner’s assertion, the Michigan Supreme Court did not hold

that there is a presumption of a life without parole sentence, only that life without

parole is authorized based on the jury verdict alone. A Michigan court cannot,

however, impose a sentence of life without parole without first holding a hearing,

considering the mitigating factors indicated in Miller, and placing findings of

aggravating and mitigating factors on the record. Only then may a court impose its

sentence, stating its reasons for the individualized sentence on the record to facilitate

appellate review for reasonableness. The Skinner court held that life without parole

would

be

a

disproportionate

sentence—and

therefore

unreasonable

and

unconstitutional—where the characteristics of youth mitigate against such a

sentence, as where the defendant is not irreparably corrupt. Thus, while a specific

factual finding of irreparable corruption or permanent incorrigibility is not required,

the sentencing court may not impose a life without parole sentence where a juvenile

murderer does not embody such character. See Skinner, 917 N.W.2d at 311, n. 18.

-29Because the Eighth Amendment does not require the finding of any particular fact

before imposing a life-without-parole sentence, the Michigan statutory scheme is

consistent with Miller, Montgomery, and the Eighth Amendment.

-30CONCLUSION

Because the Michigan Supreme Court's determination that the sentencing

provisions contained in Mich. Comp. Laws § 769.25 do not violate the Sixth, Eighth,

or Fourteenth Amendments of the U.S. Constitution, the Respondent requests that

this Court deny certiorari to the Petitioners.

Respectfully submitted,

David S,,~yton

Gene~e ounty Prosecuting Attorney

~/ a.-;;:::___

Michael A. Teener

Managing APA-Appellate Division

Counsel of Record

900 S. Saginaw Street

100 Courthouse

Flint, Michigan 48430

mtesner@co.genesee.mi.us

(810) 257-3852

Attorneys for Respondent

Dated: MARCH 13, 2019